What is the difference between the EB-5 and EB-3 visa?

I am a professional and have some money for investment. I would like information about how to immigrate legally to the United States with either the EB-5 visa or the EB-3 visa. What is the difference between the two? Which visa option is a better choice?

Answers

Both the EB-5 and EB-3 process can be started and filed at the same time. If one process is approved, then you can rely on the first approved process to continue to obtain permanent residency in the United States. The EB-3 process involves the advertising of a job offer in the United States to determine whether whoever replies to the job advertisement is qualified or not qualified to take the U.S. job offered.

An EB-5 petitioner gets an investment immigrant visa. It requires an investment of either at least $500,000 or $1 million depending on the type and location of the investment. On the other hand, EB-3 is an employment immigrant visa for skilled workers sponsored by their employers. Lastly, an EB-5 investor can be self-sponsored, while an EB-3 skilled worker always needs an employer sponsorship.

Both categories are "employment-based," but EB-5 is an investment and job creation immigrant category, while EB-3 is for skilled or professional workers who have received an offer of permanent employment from a U.S. employer/sponsor that has applied to the U.S. Department of Labor for a determination that the job is in shortage occupation (i.e., U.S. workers are not available to fill the position). The better choice for you depends upon whether you wish to invest in your own business (or a regional center) or whether you have special skills or education and a willing potential U.S. company to sponsor you for the labor certification process. There are many other differences in the requirements for these two immigrant categories; an experienced immigration attorney can explain them to you and advise you on which option or options will work for your situation.

The EB-3 category is for skilled workers in positions requiring a minimum of two years of training or experience, or professionals holding a bachelor's degree or foreign degree equivalent, or other workers in positions requiring less than two years of higher education, training, or experience. It generally requires an employer to petition for you and an employment offer. It also generally requires a PERM application (labor certification) by the employer on your behalf to prove there are no U.S. qualified workers available for the position with similar minimum qualifications. It does not lead to a green card immediately and requires multiple immigration steps to achieve a permanent residence in the United States. The PERM application may be the hardest obstacle to overcome. The EB-5 visa is for immigrant EB-5 investors seeking to engage directly in a commercial enterprise in the United States or invest through a USCIS approved regional center project in the United States that will benefit the U.S. economy and create jobs. It leads directly to a green card upon approval of the I-526 petition by a foreign EB-5 investor (you either consular process for the immigrant visa if abroad or adjust status in the United States to conditional permanent resident if in the United States in another lawful immigration status). Filing the I-526 petition requires that you have the minimum investment amount originating from a lawful source of funds (currently $500,000 for regional center investment or $1 million for direct, non-targeted employment area investment).

The EB-5 and EB-3 programs are very different. EB-3 is the 3rd employment-based preference for individuals who are sponsored by an employer where the employer has proven the shortage of qualified, willing and able U.S. workers for the position. Same would require a bona fide job offer from a U.S. employee. An EB-5 investor visa is typically based upon a minimum $500,000 investment through an EB-5 regional center in which you have no direct employment or management relationship. You have simply made an investment decision much like taking a stock on the stock exchange. The better option depends upon the facts of your case. If you had a willing employer and you had job credentials and education that matched up to a bona fide offer of employment, and if the employer was willing to prove to the U.S. Department of Labor that they could not find a U.S. citizen job applicant willing to work at the prevailing wage, then you might wish to immigrate through employment as it would save you the $500,000 investment and the related expenses. The advantage of the EB-5 program is that you do not need to be sponsored by an employer and the qualifications are relatively simple as long as you are a qualified investor and you can make the minimum investment.

The difference is that you need an employer sponsor under the EB-3 visa. The EB-5 is investment-based.

John J Downey

Immigration Attorney

Answered onJuly 19, 2016

The EB-3 visa is for professional or skilled workers. It is first processed by the Department of Labor for approval. It would require a job offer from a U.S. employer. The EB-5 visa does not require any specific employment expertise. It requires an investment of either $500,000 or $1 million to provide for the employment of 10 U.S. workers.

An EB-5 is an employment-creation visa. It enables the investor, who invests minimally $500,000 and creates 10 full-time positions, to enter the United States as a conditional permanent resident of the United States with all the rights of a permanent resident. This is the simplest means of obtaining U.S. permanent residence. EB-3 visas are employment visas. They are visas issued to persons who will provide work for which there is no U.S. worker able, willing and available to perform. EB-3 visas require an employer who has been certified by the U.S. Department of Labor to be found eligible by ISCOS to hire a foreign national. To consider entering on an EB-3, you must be the potential employee of some business. The employer must be able to show a profit to pay the prevailing annual wage or higher. Generally, the business' most recent tax return is the evidence required to make the financial showing. The employer must recruit for the position to establish that there is no U.S. worker ready, willing and able. Timing is another matter. The EB-3 process can take a year. However, if you are a national of India, China or the Philippines, you will need to wait years for an EB-3 visa to become available to you. The EB-5 may take more than a year and half. If you are a national of China, you will need to wait years for an EB-5 visa to become available to you. The above is a simplistic summary comparing the two visas. It would be best to have an extended consultation with an attorney to find what best fits your needs and assets.

The difference is that EB-5 visa is an individual investor visa, and EB-3 is a skilled workers, professionals, and other workers visa sponsored by an employer in the United States willing to go through the process of obtaining Department of Labor Certification for such an employee and waiting for the visas to become available before filling the open position. I would strongly recommend you hire an experienced immigration attorney to assist in your case. Good luck.

For EB-3 you need a good faith employer who would seek to employ you and who must be ready to show there are no qualified U.S. workers. For EB-5, you presently have to show $500,000 invested in a qualifying project. It seems EB-5 may be better suited for you.

The EB-5 visa requires a minimum $500,000 investment in a for-profit entity in the United States. The EB-3 visa requires a job offer from a U.S. employer for a role that requires skilled or unskilled labor. To answer which one is more suitable for you requires knowing your risk appetite, country of birth, current employment situation, etc.

EB-5 is an immigrant investor processing category and EB-3 is a skilled worker category (processed through an employer). If you have money to invest in processing for your permanent residence, it looks like EB-5 would be your best option.

Not a question to be answered easily; you would need to weigh the pros and cons for each. EB-5 does have a current priority date and EB-3 for India is backed up to 2004, but there are lots of other considerations.

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